Over the last ten years, television viewers have been inundated with commercials starring “Smiling Bob,” whose enthusiastic mien, we learn, stems from his happy experiences with Enzyte, a male performance-enhancing product. His wife adores him, his friends envy him, and his life is good. Unfortunately, the study claimed to support the benefits of the product was a sham; the “doctors” who developed it were fictional; and the customer satisfaction reports provided to viewers were wholly fabricated. And now, Steve Warshak, its promoter, and Harriet, his mother, who worked for him, are in jail, having been convicted of mail fraud, bank fraud, and money laundering, and several interesting legal issues were addressed in their appeal.
The prosecution underlying United States v. Warshak, et als., 2010 WL 5071766 (6th Cir., 12/14/2010) depended in significant measure on emails exchanged between Mr. Warshak and other employees, largely his family members, which demonstrated the fraudulent nature of the product and the means used to frustrate customers’ ability to secure refunds. Nearly 30,000 emails were obtained from Warshak’s internet service provider, Nuvox.
The Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq., dictates the procedures to be employed by the government to obtain email content. Emails stored by the provider in the last 180 days may only be obtained through a warrant, § 2703(a), while older emails may be obtained by warrant, subpoena, or court order. § 2703(d). Also, under § 2703(f), the government may request a service provider to preserve all records in its possession pending issuance of process to compel their production; DOJ’s internal guidance makes clear that the preservation letter may not be used to prospectively request the maintenance of emails which have not yet been created by the client. Yet, in Mr. Warshak’s case, the government had requested Nuvox to prospectively save their client’s emails when they were created, emails which otherwise would have been deleted from the company’s server as they were downloaded and opened by the client. The government then used a subpoena to obtain the accumulated emails from Nuvox. Mr. Warshak claimed his Fourth Amendment rights were violated by this warrantless seizure of the content of his emails and that the government violated the SCA and DOJ guidelines.
The Sixth Circuit first considered the Fourth Amendment status of emails in the possession of a service provider. The court easily found that Mr. Warshak had a subjective expectation of privacy, and then turned to the thornier question whether that expectation was objectively reasonable. Tracing the expanding category of communication modalities which have been accorded Fourth Amendment protection, from the telephone calls in Katz v. United States, 389 U.S. 347 (1967) to private correspondence in United States v. Jacobsen, 466 U.S. 109 (1984), the court held that it would “defy common sense” to treat emails, which “play an indispensable part in the Information Age,” any differently. It did not matter under the Fourth Amendment that Nuvox had the ability to access its client’s emails, any more than it mattered that the telephone company in Katz could eavesdrop in on calls in 1967. While there could be a subscriber agreement which so broadly prescribed the provider’s announced intention to review its client’s email as to upset the client’s expectations of privacy, but the Nuvox agreement was not so broad. Therefore, the SCA is unconstitutional to the extent that it allows the government to obtain any emails from a service provider without a search warrant.
However, under the Leon good-faith doctrine, since the government agents in Warshak relied in good faith on the SCA provisions and since the statute was not obviously unconstitutional to them, the exclusionary remedy was inappropriate and the email evidence was not to be suppressed. As for the government’s improper use of a forward-looking SCA preservation letter, the court held that this statutory violation was irrelevant to the good-faith determination, since the critical inquiry was the actual obtaining of the evidence; the fact that the evidence would not have existed for later seizure but for the improper preservation request was of “no consequence.”
Future SCA subpoenas in the Sixth Circuit, though, would seem to constitute unlawful seizures, and practitioners in other Circuits may be able to use this opinion to argue both that SCA subpoenas are unlawful and that agents may no longer assert a good faith reliance on the SCA in light of Warshak.